[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Proposed Rules]
[Pages 60385-60386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24931]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / 
Proposed Rules  

[[Page 60385]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0088]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Citizenship and Immigration Services-016 
Electronic Immigration System-3 Automated Background Functions System 
of Records

AGENCY: Privacy Office, DHS.

ACTION:  Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security U.S. Citizenship 
and Immigration Services-016 Electronic Immigration System-3 Automated 
Background Functions System of Records'' and this proposed rulemaking. 
In this proposed rulemaking, the Department proposes to exempt portions 
of the system of records from one or more provisions of the Privacy Act 
because of criminal, civil, and administrative enforcement 
requirements.

DATES:  Comments must be received on or before October 31, 2011.

ADDRESSES: You may submit comments, identified by docket number DHS-
2011-0088, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 703-483-2999.
     Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.
     Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
     Docket: For access to the docket to read background 
documents or comments received go to http://www.regulations.gov.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Donald K. Hawkins (202-272-8000), Privacy Officer, U.S. Citizenship and 
Immigration Services, 20 Massachusetts Avenue, NW., Washington, DC 
20529. For privacy issues please contact: Mary Ellen Callahan (703-235-
0780), Chief Privacy Officer, Privacy Office, Department of Homeland 
Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) U.S. Citizenship and Immigration 
Services (USCIS) proposes to establish a new DHS system of records 
titled, ``DHS/USCIS-016 Electronic Immigration System-3 Automated 
Background Functions System of Records.'' DHS/USCIS is creating a new 
electronic environment known as the Electronic Immigration System 
(USCIS ELIS). USCIS ELIS allows individuals requesting a USCIS benefit 
to register online and submit certain benefit requests through the 
online system. This system will improve customer service; increase 
efficiency for processing benefits; better identify potential national 
security concerns, criminality, and fraud; and create improved access 
controls and better auditing capabilities.
    DHS and USCIS are promulgating the regulation ``Immigration 
Benefits Business Transformation, Increment I'' (August 29, 2011, 76 FR 
53764) to make it possible for USCIS to transition to an electronic 
environment. This regulation will assist USCIS in the transformation of 
its operations by removing references and processes that inhibit the 
use of electronic systems or constrain USCIS's ability to respond to 
changing workloads, priorities, or statutory requirements.
    Applicants and petitioners (Applicants); co-applicants, 
beneficiaries, derivatives, dependents, or other persons on whose 
behalf a benefit request is made or whose immigration status may be 
derived because of a relationship to the Applicant (Co-Applicants); and 
their attorneys and representatives accredited by the Board of 
Immigration Appeals (Representatives) may create individualized online 
accounts. These online accounts help Applicants and their 
Representatives file for benefits, track the status of open benefit 
requests, schedule appointments, change their addresses and contact 
information, and receive notices and notifications regarding their 
cases. Through USCIS ELIS, individuals may submit additional 
information and/or evidence electronically. Once an individual provides 
biographic information in one benefit request, USCIS ELIS uses that 
information to pre-populate any future benefit requests filed by the 
same individual. This eases the burden on an individual so he or she 
does not have to repeatedly type in the same information and decreases 
the opportunity for error.
    USCIS collects this information primarily for the benefit decision-
making process, to detect duplicate and related accounts, identify 
potential national security concerns, criminality, and fraud. In 
essence, Electronic Immigration System-3 Automated Background Functions 
(USCIS ELIS Automated Background Functions) is used to assist USCIS 
personnel in verifying the data submitted by the Applicant or 
Representative, to ensure that any duplicate accounts will be merged, 
and that background check results, indicating threats to the national 
security, public safety criminality, or fraud will be appropriately 
considered in adjudicating the benefit request.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/USCIS-016 Electronic Immigration System-3 Automated 
Background Functions System of Records. Some information in Electronic 
Immigration System-3 Automated Background Functions (USCIS ELIS 
Automated Background Functions)

[[Page 60386]]

relates to official DHS national security, law enforcement, and 
immigration activities. The exemptions are required to preclude 
subjects from compromising an ongoing law enforcement, national 
security or fraud investigation; to avoid disclosure of investigative 
techniques; to protect the identities and physical safety of 
confidential informants and law enforcement personnel; and to ensure 
DHS's ability to obtain information from third parties and other 
sources.
    This system is exempted from the following provisions of the 
Privacy Act pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Additionally, many of 
the functions in this system require retrieving records from law 
enforcement systems. Where a record received from another system has 
been exempted in that source system under 5 U.S.C. 552a(j)(2), DHS will 
claim the same exemptions for those records that are claimed for the 
original primary systems of records from which they originated and 
claims any additional exemptions in accordance with this rule.
    The exemptions proposed here are standard for agencies where the 
information may contain investigatory materials compiled for law 
enforcement purposes. These exemptions are exercised by executive 
federal agencies. In appropriate circumstances, where compliance would 
not appear to interfere with or adversely affect the overall law 
enforcement process, the applicable exemptions may be waived on a case-
by-case basis.
    A notice of system of records for DHS/USCIS-016 Electronic 
Immigration System-3 Automated Background Functions System of Records 
is also published in this issue of the Federal Register.

II. Privacy Act

    The Privacy Act allows government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

    For the reasons stated in the preamble, DHS proposes to amend 
Chapter I of Title 6, Code of Federal Regulations, as follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

    1. The authority citation for part 5 continues to read as follows:

    Authority:  Pub. L. 107-296, 116 Stat. 2135; (6 U.S.C. 101 et 
seq.); 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. 
Subpart B also issued under 5 U.S.C. 552a.

    2. Add at the end of Appendix C to Part 5, the following new 
paragraph ``62'':

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    62. The DHS/USCIS-016 Electronic Immigration System-3 Automated 
Background Functions System of Records consists of electronic and 
paper records and will be used by DHS and its components. The DHS/
USCIS-016 Electronic Immigration System-3 Automated Background 
Functions System of Records is a repository of information held by 
USCIS to serve its mission of processing immigration benefits. This 
system also supports certain other DHS programs whose functions 
include, but are not limited to, the enforcement of civil and 
criminal laws; investigations, inquiries, and proceedings 
thereunder; and national security and intelligence activities. The 
DHS/USCIS-016 Electronic Immigration System-3 Automated Background 
Functions System of Records contains information that is collected 
by, on behalf of, in support of, or in cooperation with DHS and its 
components and may contain personally identifiable information 
collected by other federal, state, local, tribal, foreign, or 
international government agencies. This system is exempted from the 
following provisions of the Privacy Act pursuant to 5 U.S.C. 
552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I); and (f). Additionally, many of the functions in this 
system require retrieving records from law enforcement systems. 
Where a record received from another system has been exempted in 
that source system under 5 U.S.C. 552a(j)(2), DHS will claim the 
same exemptions for those records that are claimed for the original 
primary systems of records from which they originated and claims any 
additional exemptions in accordance with this rule. Exemptions from 
these particular subsections are justified, on a case-by-case basis 
determined at the time a request is made, for the following reasons:
    (a) From subsection (c)(3) (Accounting for Disclosures) because 
release of the accounting of disclosures could alert the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and 
reveal investigative interest on the part of DHS as well as the 
recipient agency. Disclosure of the accounting would therefore 
present a serious impediment to law enforcement efforts and/or 
efforts to preserve national security. Disclosure of the accounting 
would also permit the individual who is the subject of a record to 
impede the investigation, to tamper with witnesses or evidence, and 
to avoid detection or apprehension, which would undermine the entire 
investigative process.
    (b) From subsection (d) (Access to Records) because access to 
the records contained in this system of records could inform the 
subject of an investigation of an actual or potential criminal, 
civil, or regulatory violation to the existence of that 
investigation and/or reveal investigative interest on the part of 
DHS or another agency. Access to the records could permit the 
individual who is the subject of a record to impede the 
investigation, to tamper with witnesses or evidence, and to avoid 
detection or apprehension. Amendment of the records could interfere 
with ongoing investigations and law enforcement activities and would 
impose an unreasonable administrative burden by requiring 
investigations to be continually reinvestigated. In addition, 
permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to homeland 
security.
    (c) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of federal law, the accuracy of information obtained or 
introduced occasionally may be unclear, or the information may not 
be strictly relevant or necessary to a specific investigation. In 
the interests of effective law enforcement, it is appropriate to 
retain all information that may aid in establishing patterns of 
unlawful activity.
    (d) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this 
system are exempt from the individual access provisions of 
subsection (d) for the reasons noted above, and therefore DHS is not 
required to establish requirements, rules, or procedures with 
respect to such access. Providing notice to individuals with respect 
to existence of records pertaining to them in the system of records, 
or otherwise setting up procedures pursuant to which individuals may 
access and view records pertaining to themselves in the system, 
would undermine investigative efforts and reveal the identities of 
witnesses, and potential witnesses, and confidential informants.

    Dated: September 15, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2011-24931 Filed 9-28-11; 8:45 am]
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